ALDOT fights state lawsuit over U.S. 98

State transportation officials have filed a motion in Mobile Circuit Court to dismiss a lawsuit filed by Attorney General Troy King seeking nearly a half-million dollars in penalties for muddy runoff from the U.S. 98 project in west Mobile.

Transportation officials contend the department is immune from such court action.

The motion is set for a March 14 hearing.

The attorney general's suit, filed Jan. 7, seeks up to $25,000 per violation of the Alabama Water Pollution Control Act, meaning the suit could result in penalties totaling nearly $500,000.

King said he filed the suit, "to make sure we are protecting the environment and are not polluting the reservoir Mobile depends on for drinking water with sediment."

"Government shouldn't pollute. Government shouldn't damage the environment," King said, discussing the damage caused by the Transportation Department's project. "If that happens, then the government should step in and protect the environment."

In early January, transportation officials signed a consent decree with the Alabama Department of Environmental Management that outlined a $75,000 fine and other measures that were required to bring the project into compliance with state and federal law. Transportation officials said the agency had no plans to fight that fine, only the attorney general's suit.

In seeking to have the suit dismissed, transportation officials argue that neither the agency nor its director, Joe McInnes, can be penalized in court for the environmental violations because the Transportation Department is a state agency and so is protected by "sovereign immunity," under the state constitution.

Sovereign immunity is a legal concept embraced in the Alabama Constitution. According to the Transportation Department's motion, the concept means "that the State of Alabama shall never be made a defendant in any court of law," and state agencies have "absolute immunity in any court." States and the federal government often claim "sovereign immunity" to ward off various types of legal action.

The motion to dismiss the penalty argues that "an action seeking monetary penalties constitutes an attack upon the state treasury, and thus is barred."

"This is a motion filed by lawyers for the Department of Transportation seeking to remove from the case the attorney general's efforts to seek damages against the department," said Tony Harris, a Transportation Department spokesman.

"We are doing that because we believe that based on the state's sovereign immunity the department should not be held liable for any damages."

King called the Transportation Department's effort to dismiss the suit, "pretty standard," and predicted his agency would succeed in its effort to enforce state law.

"We think we are on solid legal ground. We are certainly on the higher ground," King said. "At the end of the day, I think the people of Mobile can look forward to seeing their water and environment protected."

Prior to a Press-Register investigation, numerous inspections by ADEM failed to note any significant violations at the 8-mile-long work site near Big Creek Lake, Mobile's primary drinking water supply. After the newspaper's reporting revealed significant problems at nearly every place the roadway crossed streams or wetlands, ADEM and a private engineering firm hired by the Transportation Department documented numerous violations.

In many cases, those violations were obvious, such as large erosion control devices placed in streams, an illegal practice under both state and federal law. ADEM inspectors ultimately found that protections all along the project did not meet standards required by ADEM and frequently were set up in ways that violated basic state environmental laws.

Casi Callaway, with environmental group Mobile Baywatch, applauded the attorney general's effort to hold transportation officials accountable and said she was disappointed that the earlier ADEM fine had not been more substantial.

"The only way to ensure a permit holder meets the minimum standards of protecting our waterways -- in this case our drinking water supply -- is to provide a deterrent to future violations," said Callaway, whose group also has sued the Transportation Department because of the runoff problems from U.S. 98.

"ALDOT must be held accountable for the mess they made in the Escatawpa and Big Creek Lake watershed."

ON THE NET

To read the Press-Register's previous reports about runoff from the U.S. 98 highway project, go to: http://blog.al.com/pr/muddy)98/